131 Mo. App. 313 | Mo. Ct. App. | 1908
This action was brought by the administrator of the estate of John L. Simpson, deceased, against the Metropolitan Street Railway Company and the Kansas City Home Telephone Company to recover damages in the sum of five thousand dollars, alleged, to have been caused by the negligence of both defendants. At the conclusion of the evidence, the street railway company was dismissed and the issues relating to the alleged negligence of the remaining defendant were submitted to the jury. A verdict was re
• It appears from the evidence that Simpson, who was an unmarried man thirty-four years old, was a laborer employed by the railway company in the construction of an electric railway from Kansas City to Dodson. On the 18th day of May, 1906, he was riding to his work on the construction train and was seated with a number of his fellow-laborers on top of a box car. He arose from his position and walked along the running-board to join another company of laborers who were seated on top of another car. While thus proceeding and while the car was crossing a public highway, he was struck by a telephone wire which the telephone company had strung across the street sometime before, and was thrown from the car and killed. It was shown that the wire which, when the telephone line was constructed, had been placed at a height of over twenty-two feet above the track, had sagged in the middle and thus become reduced to an elevation above the track of only about sixteen feet, three inches, so low that a person standing on a box car could not pass under it. It had been strung less than a month before and the specific charge of negligence against the telephone company alleged in the petition is that said defendant “was careless and negligent in erecting and maintaining said wire across said track at such a height that a person standing upright on a stock or box car would not clear .the wire.” No demurrer was offered to the petition but an answer was filed which tendered the general issue and several affirmative defenses. It did not allege that plaintiff was without legal capacity to sue. At the trial, defendant objected to the introduction of any evidence on the grounds that “the petition does not allege facts sufficient to constitute a cause of action,” and “does not allege facts sufficient to show
We now are confronted with the question, argued with great learning and ability by counsel of both parties, whether the statute in force at the time of the occurrence conferred a cause of action which may be enforced by the legal representative of the estate. Plaintiff objects to the consideration of this question for the reason that, in failing to raise, either by demurrer or in the answer, the question of his legal capacity to sue, defendant waived the point. We shall postpone the discussion of this objection until after the expression of our views on the subject of whether a cause of action existed at any time which might be enforced by the administrator.
The common law gives plaintiff no cause of action and if one exists,- it must be found in the statutory law. Plaintiff contends that his cause is founded on the provisions of section 2864, Revised Statutes 1899, as amended in 1905 (Acts of 1905, page 135) and sections 2865-2866, Revised Statutes 1899. Counsel for defendant argue that the wrong alleged, and which for present purposes we shall treat as proved, does not fall within the class for which a remedy was provided in section 2864, but belongs to another class for which sections 2865-2866 afford a remedy to certain relatives of the deceased, but none in favor of the administrator of his estate. Further, they say that, as the amendment of section 2864 in 1905 was not expressly made applicable to causes not embraced in that section, it cannot be extended by implication to such causes and, consequently, cannot be construed as an amendment of section 2866. The conclusion from these premises is that since the wrong alleged is not one for which an action may be prosecuted under section 2864 as amended, and
Sections 2864, 2865 and 2866 first appear in the statutes of 1855, and the last two sections were carried down to 1907 without substantial amendment. Section 2864 as originally enacted (Revised Statutes 1855, page 647, section 2) gave a right of action for a death caused by the negligence of a servant operating an instrument of transportation, such right to inure to no other persons than those included in the following classes: First, the husband or wife of the deceased. Second, “If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased. Or, third, if such deceased be a minor and unmarried, then by the father or mother who may join in the suit and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor.” The remedy provided was a penalty of five thousand dollars. By amendment of this section in 1885 (Session Acts, page 153), adopted children were added to the second class of beneficiaries. In 1905, other amendments were made, among them one which invested the jury with the discretion, in case they found for plaintiff, of giving him a verdict in any amount they might choose within the limits of two thousand dollars and ten thousand dollars; and another which provided: “If there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.” (Laws 1905, p. 135.)
In 1907 (Session Acts, page 252), section 2866 was
Thus, having before us a wrong for which section 2864 made no provision, and which had been placed by statute in a class entirely separate and distinct, both as to the nature of the resultant right and the character of the remedy, we think the accepted rules of statutory interpretation compel us to hold that the amendment of section 2864, in the absence of express declaration contained therein, should not be extended to include the succeeding sections within its operation and that, prior to the amendment of section 2866 in 1907, no cause of action could inure in a death case to the administrator. That the causes of action which were made the subjects of sections 2864 and 2865 are and always have been different in character is definitely decided in Casey v. Transit Company, 116 Mo. App. 235, where it is said: “The right of action given ■ under section 2864 is not that given under sections 2865 and 2866, and that given under the two last named sections is not that given under the former. These are purely statutory rights of action and each must- rest on its own statute. They may be joined in the same petition, but when so they should be stated in separate counts. The right of action given in section 2864 is for a death caused by the "negligence of the servant operating the defendant’s instrument of transportation, whether it be a locomotive, car, train of cars, steamboat, its machinery, stage coach, or other public conveyance, while the right of action given in the two sections next following is for a death caused by the negligence of the defendant,
In referring to section 2864 for a statement of the parties to whom a cause of action might inure and for rules of procedure, section 2866 (then section 4, page 647, Revised Statutes 1855) adopted the statute to which it referred in its then existing state and, by failing to declare that. subsequent amendments or modifications of that statute should apply also to the referring statute, such amendments or modifications should not be held to have been intended to extend to the referring statute in the absence of an express declaration to that effect. In Endlich on Interpretation of Statutes, section 85, it is said: “An act adopting by reference the Avhole or a portion of another statute, means the law as existing at the time of adoption and does not adopt any subsequent addition thereto or modification thereof.” This rule is generally recognized. [Sutherland on Statutory Construction, section 257; 26 Am. and Eng. Ency. of Law (2 Ed.), 714; Postal Tel. Co. v. Railroad, 89 Fed. 190; Jones v. Dexter, 8 Fla. 276; Culver v. People, 161 Ill. 96; 43 N. E. 812; Darmstaeter
Under these rules, that part of section 2864 relating to parties and procedure became by adoption an integral part of section 2866 to the same extent as though it had been written into the latter statute and neither a subsequent amendment nor repeal of section 2864 could affect the referring section. But,, it is argued by plaintiff that since the three sections were component parts of the same act, these rules of interpretation do not obtain and we are pointed to the rule stated in McGinnis v. Car & Foundry Co., 174 Mo. 225, 232, that “when, therefore, a statute creates a liability and prescribes the person ivho shall have the right to enforce it,
These considerations lead to the conclusion that no cause of action exists in favor of the plaintiff administrator.
There is no merit in the contention that defendant waived any right by failing to demur to the petition and by answering to the merits. The question we have decided goes to the cause of action asserted and the objection that the petition does not state a cause of action is timely when made for the first time at the trial. This is not an error that could be cured by verdict. The judgment is reversed.